PASADENA, Calif. (CN) – The Justice Department on Tuesday asked the Ninth Circuit to reverse a preliminary injunction in a class action involving asylum-seekers and undocumented immigrants who do not pose a flight risk but were detained because they could not afford bail.
At a Ninth Circuit hearing at the Richard H. Chambers Courthouse in Pasadena, California, the Justice Department’s Sherease Pratt said U.S. District Judge Jesus Bernal should not have entered the classwide injunction because federal immigration judges have the discretion to rule on the ability of immigrants to pay a bond, without the need for judicial review.
“There is no presumption of release from detention during the removal period. A bond is completely discretionary with a caveat that if it is set, it must be a minimum of $1,500,” Pratt told the Ninth Circuit panel on Tuesday morning.
She argued immigration officials already weigh evidence of ability to pay at hearings, but that the burden is on undocumented immigrants and asylum-seekers to bring it up.
In a lawsuit filed in April 2016, the ACLU Foundation of Southern California sued the government to create standards similar to criminal proceedings involving citizen defendants that would require the government to consider financial circumstances when setting bail.
The ACLU said that as a matter of routine, the Department of Homeland Security and immigration judges frequently fail to consider the poverty or financial resources of an immigrant or asylum-seeker when ruling.
In court records, the civil rights group said Cesar Matias, a Honduran seeking asylum, was detained for more than four years in a Santa Ana immigration jail because he could not afford the $3,000 bond.
ACLU staff attorney Michael Kaufman told the Ninth Circuit the Constitution requires immigration judges and officials to consider whether a detainee can pay.
“The Department of Justice itself has recognized that a bail system that lacks consideration of these factors violates the equal protection and due process clause of the Constitution,” Kaufman said. “All that plaintiffs seek here is the federal government’s compliance with these fundamental requirements to ensure that no other person is incarcerated for years merely because he is poor.”
Kaufman told the panel the class would suffer irreparable harm if the panel reversed the injunction, which the federal court has stayed, and the public interest also “tips sharply” in its favor.
He cited a case in which a man called Pedro was separated from his seven children after Immigration and Customs Enforcement swept him up and he was held for more than a year on a $5,000 bond. Another woman was forced to miss her mother’s funeral after officials detained her when she could not afford her bond.
“These are just a handful of examples of the hundreds of families who have been separated and torn apart by the government’s existing bond procedures,” Kaufman said.
During rebuttal, Pratt cast doubt on the ACLU’s civil rights claims by arguing there is “no fundamental right to liberty” at an initial bond hearing because there is no prolonged detention involved.
Circuit Judge Stephen Reinhardt disputed that, pointing to evidence in the record of Matias’ four years in detention. But Pratt said Matias had a right to appeal and chose not to.
Kaufman had argued, however, that officials keep detainees in “prison-like” conditions that make it hard for them to litigate their cases and gain access to an attorney. He said the “vast majority” of detainees go without legal representation.
Reinhardt also wondered why the government was objecting to putting in place a procedure for asking immigrants if they have the ability to pay the bond.
“What is your objection to asking and considering what his resources are?” Reinhardt said. “Doesn’t that sound perfectly sane to you?”
Pratt replied, “The government’s position is that it usurps the immigration judge’s discretion. They can already consider any evidence that the alien puts forth.”
Circuit Judges Ferdinand Fernandez and Kim Wardlaw joined Reinhardt on the panel. They took the case under submission.